Ajay Kumar Vs State of Hp

The petitioner has filed the present petition for seeking regular in FIR No. 39 of 2024, dated 9.12.2024, registered for the commission of offences punishable under Section 64 of Bharatiya Nayaya Sanhita (BNS), 2023 and Section 6 of Protection of Children from Sexual Offences Act (POCSO), at Women Police Station, Dharamshala, District Kangra, H.P. As per the prosecution case, the petitioner committed penetrative

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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sexual assault on the child victim. The petitioner was not named in the FIR and was arrayed as an accused during the investigation. The petitioner is innocent, and there is nothing to connect him with the commission of crime. The petitioner belongs to a respectable family and has deep roots in the society. There is no likelihood of his absconding. He would abide by the terms and conditions which the Court may impose. Hence, the petition.

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The petition is opposed by filing a status report asserting that the informant made a complaint to the police stating that the victim, aged 13 years, complained of a stomachache on 9.12.2024. The informant took her to the Civil Hospital, where the Doctor disclosed that the victim was pregnant. She disclosed that the juvenile had maintained sexual relations with her, due to which she became pregnant. The police registered the FIR and conducted the investigation. The dates of birth of the victim and the juvenile were found to be 06.04.2011 and 8.11.2007, respectively. The pregnancy was medically terminated. The victim made a supplementary statement that the petitioner had also maintained sexual relations with her. The fetus was sent to FSL, Junga, and as per

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the report of analysis, the DNA Profile obtained from the blood of the petitioner was not consistent with his being the biological father of the aborted fetus. The petitioner had raped and impregnated the minor, which is a serious offence. The charge sheet was prepared and filed before the learned POCSO Court, Dharamshala. The petitioner had raped and impregnated the minor girl, which is a serious offence. The petitioner would intimidate the witnesses in case of his release on bail. Hence, the status report.

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I have heard Mr. Nishant Khidtta, learned Legal Aid Counsel for the petitioner and Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent-State.

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Mr. Nishant Khidtta, learned Legal Aid Counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The victim had not named the petitioner at the first instance, but she named him subsequently. The DNA profiling of the aborted fetus did not match the DNA profile of the petitioner, as per the report of analysis. Thus, there is no corroboration of the statement of the victim, at this stage that the petitioner had raped her. The petitioner is a permanent

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resident of District Chamba, H.P., and he would abide by the terms and conditions which the Court may impose. Hence, he prayed that the present petition be allowed and the petitioner be released on bail. He relied upon the judgment of the Coordinate Bench of this Court in Inder Kumar alias Bunty Vs. State of H.P. Cr.MP(M) No. 1519 of 2023, decided on 14.8.2023 in support of his submission.

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Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent-State, submitted that the petitioner had raped and impregnated a minor girl. The offence alleged against the petitioner is heinous. The petitioner can intimidate the witnesses in case of his release on bail. Therefore, he prayed that the present petition be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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The parameters for granting bail were considered by the Hon’ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC 768: 2024 SCC OnLine SC 974, wherein it was observed at page

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“Relevant parameters for granting bail

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26. While considering as to whether bail ought to be granted in a matter involving a serious criminal offence, the Court must consider relevant factors like the nature of the accusations made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the role attributed to the accused, the criminal antecedents of the accused, the probability of tampering of the witnesses and repeating the offence, if the accused are released on bail, the likelihood of the accused being unavailable in the event bail is granted, the possibility of obstructing the proceedings and evading the courts of justice and the overall desirability of releasing the accused on bail. [Refer: Chaman Lal v. State of U.P. [ Chaman Lal v. State of U.P . , ( 2004) 7 SCC 525: 2004 SCC (Cri) 1974]; Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977]; Masroor v. State of U.P. [Masroor v. State of U.P., (2009) 14 SCC 286 : (2010) 1 SCC (Cri) 1368]; Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765]; Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527]; Anil Kumar Yadav v. State (NCT of Delhi)[Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129 : (2018) 3 SCC (Cri) 425]; Mahipal v. Rajesh Kumar [Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 : (2020) 1 SCC (Cri) 558] . ]

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This position was reiterated in Ramratan v. State of

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M.P., 2024 SCC OnLine SC 3068, wherein it was observed as

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under:-

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“12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin

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Lokhandwalla v. State of Maharastra (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below:

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“14. The language of Section 437(3) CrPC, which uses the expression “any condition … otherwise in the interest of justice” has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail.” (Emphasis supplied)

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13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570 , this Court discussed the scope of the discretion of the Court to impose “any condition” on the grant of bail and observed in the following terms: —

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“15. The words “any condition” used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance, and effective in the pragmatic sense, and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of

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the case do not warrant such an extreme condition to be imposed.” (Emphasis supplied)

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14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779 , laid down the factors to be taken into consideration while deciding the bail application and observed:

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“ 4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial.” (Emphasis supplied)

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This position was reiterated in Shabeen Ahmed versus State of U.P., 2025 SCC Online SC 479.

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The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

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The status report shows that the victim initially named the juvenile as the person who had impregnated her. Subsequently, she named the petitioner. The police also sent the aborted fetus of the victim to FSL, and as per the report of analysis, the DNA obtained from the aborted fetus did not match the DNA of the petitioner. This report does not corroborate the victim’s version that the petitioner had impregnated her.

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In Inder Kumar (supra), a similar situation arose, and the DNA report did not connect the accused to the fetus. It was held that, prima facie , the report was insufficient to detain the accused in custody.

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In the present case also, the petitioner cannot be detained in custody when the report of analysis does not corroborate the victim’s version that the petitioner had impregnated her.

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The petitioner asserted that he is a permanent resident of District Chamba, HP. This was not suggested to be incorrect in the status report. Hence, the plea of the petitioner has to be accepted as correct that he has roots in the society and he is not likely to abscond if released on bail.

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It was submitted that the petitioner can intimidate the witnesses in case of his release on bail; however, this is merely an apprehension and not sufficient to justify the pretrial detention of the petitioner, as the apprehension can be removed by imposing conditions.

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Consequently, the present petition is allowed, and the petitioner is ordered to be released on bail in the sum of ₹1,00,000/- with one surety of the like amount to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following terms and conditions: -

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(I) The petitioner will not intimidate the witnesses, nor will he influence any evidence in any manner whatsoever;

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(II) The petitioner shall attend the trial on each and every hearing and will not seek unnecessary adjournments;

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(III) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the SHO concerned, the Police Station concerned and the Trial Court;

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(IV) The petitioner will surrender his passport, if any, to the Court; and

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(V) The petitioner will furnish his mobile number and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile

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number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change.

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It is expressly made clear that in case of violation of any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail.

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The petition stands accordingly disposed of. A copy of this order be sent to the Jail Superintendent, Lala Lajpat Rai District and Open-Air Jail, Dharamshala, District Kangra, HP and the learned Trial Court by FASTER.

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The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the case's merits.

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A downloaded copy of this order shall be accepted by the learned Trial Court while accepting the bail bonds from the petitioner, and in case said Court intends to ascertain the veracity of the downloaded copy of the order presented to it, the same may be ascertained from the official website of this Court.

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( Rakesh Kainthla) Judge

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14^th August 2025 (Chander)

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Digitally signed by CHANDER CHANDER SHEKHAR SHEKHAR Date: 2025.08.14 14:23:17 +0530

Ajay Kumar v. State of Hp

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Ajay Kumar v. State of Hp

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